Since the Trump administration’s decision to stop drafting new regulations on the accessibility of “websites, furniture and non-fixed equipment,” this area of law could remain open for quite some time as the courts work through the questions in a medley of judicial decisions.
It is very likely that court findings will be inconsistent across judicial circuits on some key issues, and plaintiffs are already taking advantage of the uncertainty by filing more lawsuits.
The Trump administration continues to reverse the previous administrations rules and in July of 2017 the Department of Justice stated that it will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.
Since it was signed into law by President George H. W. Bush in 1990, the Americans with Disabilities Act has been cited thousands of times in lawsuits filed against businesses in order to remove physical barriers for disabled people.
As long ago as 2009 the act was cited in lawsuits that targeted the websites of businesses and universities, arguing that online portals must be just as accessible to disabled people as the buildings that house businesses and schools. In 2010 the Justice Department began to draft formal regulations for websites to meet ADA goals, but this action has stopped because the Trump administration called for the rollback of numerous federal regulations, including those pertaining to the ADA.
Within this vacuum of uncertainty, many lawsuits have been brought in various courts, where plaintiffs sued such brands as McDonald’s, Groupon, Kmart and Sears, among others. It is reasonable to assume that the number of website accessibility cases will continue to increase in the short term.
Nearly 5,000 ADA lawsuits were filed in federal court for alleged website violations in the first six months of 2018, according to an analysis by Seyfarth Shaw, a law firm that specializes in defending such cases. The firm predicted that the number of lawsuits will climb to nearly 10,000 by the end of the year, a 30% increase from 2017.
As we’ve written about before, currently no formal government standards exist for private businesses to follow to ensure their websites comply with the ADA, so a consortium of web innovators has created guidelines, known as the Web Content Accessibility Guidelines (WCAG), to make websites more accessible to disabled people.
Government websites already follow those guidelines but for the most part, private business websites, which are typically full of images and video, have lagged behind with their compliance. Cost is a big factor for businesses of all sizes, and the private sector, because of its diversity of offerings tends to be more difficult to overhaul to meet the guidelines.
Ironically, the cost of defending themselves against lawsuits can be even more burdensome than expanding access for their clients, which makes the decision to comply even more complicated for small businesses.